A campaign worker places campaign signs outside an early voting polling site, Monday, Oct. 20, 2014, in San Antonio. Early voting began Monday across Texas, where there are hotly-contested races for the state's high courts.

A campaign worker places campaign signs outside an early voting polling site, Monday, Oct. 20, 2014, in San Antonio. Early voting began Monday across Texas, where there are hotly-contested races for the state's high courts.

Most people would like to believe that the judges in their states are above the partisan fray, but this belief is being sorely challenged by the Supreme Court’s 2010 Citizens United decision on campaign finance. Voters in 39 states elect at least some of their state judges. Many of these state judicial contests are starting to look more and more like regular political campaigns. Money is pouring in, much of it from outside sources. So far this year, special interest groups and political parties have spent an estimated $9 million on TV ads for state judges. Please join us to discuss partisanship and state judges.


  • James Bopp Indiana lawyer, brought Citizens United case
  • Alicia Bannon counsel, Democracy Program Brennan Center for Justice
  • Norman Ornstein resident scholar, American Enterprise Institute; co-author with Thomas Mann of, "It's Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism."
  • Jan Baran head of the election law group at Wiley Rein LLP, former general counsel to the Republican National Committee and author of "The Election Law Primer for Corporations."


  • 10:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Midterm elections are less than a week away. And in many states voters will be choosing state judges. If they know anything at all about these judges it's likely to be from a campaign ad, one that in many cases has been paid for by a political party or interest group. Joining me to talk about how we elect state judges and why it matters, Norman Ornstein of the American Enterprise Institute, Jan Baran, an attorney in private practice.

  • 10:07:31

    MS. DIANE REHMAnd joining us from an NPR studio in New York, Alicia Bannon of the Brennan Center for Justice. I hope you'll weigh in, call us with your comments, questions, 800-433-8850. Send us an email to drshow@wamu.org, follow us on Facebook or send us a tweet. And welcome to all of you.

  • 10:07:59

    MR. NORMAN ORNSTEINThank you, Diane. Great to be with you.

  • 10:08:00

    MR. JAN BARANHello, Diane.

  • 10:08:02

    REHMJan Baran, let me start with you. Some states elect their judges, some states appoint their judges. Give us sort of a quick overview.

  • 10:08:15

    BARANSure. Actually 39 states elect all or some of their judges. And that usually comes as a surprise to people, especially here in Washington because we're very accustomed to the federal system, where the president appoints judges and the Senate confirms them. And then those judges have life terms, either on trial courts or the Court of Appeals or on the Supreme Court of the United States.

  • 10:08:43

    BARANThat was the model established under the Constitution by the founders in the 18th century. But what developed as new states came into the Union was a rejection of that model. And particularly after the so-called Dred Scott decision on slavery, which upheld a federal law that required escaped slaves to be returned to their masters in the South. There was a huge public reaction to that.

  • 10:09:14

    BARANAnd the new states viewed the federal judicial system appointment to be inadequate because there was no accountability for the judges and they were given life terms. So since that time the courts -- the states have required some accountability for the judges, either by election, sometimes by appointment within a retention election, it's called, where basically voters decide whether an existing judge should be retained on the bench.

  • 10:09:53

    REHMI see. I see.

  • 10:09:56

    BARANAnd this process is very much dependent on the particular system in a particular state or jurisdiction.1

  • 10:10:03

    REHMAnd, Norm Ornstein, four states have adopted public financing for judgeships. But even those are now being challenged.

  • 10:10:15

    ORNSTEINThey're being challenged with a very aggressive effort. Much of it now is turning in a partisan direction. And in North Carolina where there was public financing, the Republican legislature and governor repealed that. And we're seeing very aggressive campaigns against judges or nominees for judgeships. One of the things that's happened here, Diane -- and I should start by saying I agree Sandra Day O'Connor, that judicial elections are an abomination.

  • 10:10:42

    ORNSTEINIt's a very bad practice to have because it brings public opinion in in a way that can really challenge the independence of judges or shake decisions. But it's made worse by what's happened in our campaign finance system of late. And what we're seeing is that judgeships almost everywhere have become a part of the partisan polarization. It's all got thrown into that category.

  • 10:11:08

    ORNSTEINAnd if you add to that the fact that many of the decisions made by judges at the state and local level can have enormous financial implications for plaintiffs or defendants, which provides an incentive to try and get rid of a judge that you don't like or intimidate a judge who's on the bench in case he or she rules the wrong way.

  • 10:11:28

    REHMAnd you wrote a piece recently for the National Journal about how these elections have changed since the ruling on Citizens United.

  • 10:11:42

    ORNSTEINYeah, now there were problems with judicial elections beforehand I should say. But what's really happened with a combination of Citizens United, a Court of Appeals decision called Speech Now, and the McCutcheon decision that's followed, and with a number of things that have happened at the state level where -- particularly led by James Bopp, an activist. He's gone out to states to try and remove any of the distinctions between judicial and other elections so they're the same as any other kind of a political campaign.

  • 10:12:14

    ORNSTEINWe're seeing more money injected into judicial elections. Now it's not the same as what we seen in general political campaigns. You know, we're probably talking about -- last time I think Ms. Bannon said $56 million spent on elections. You know, probably we'll end up around $100 million. If you could have a million dollars or several hundred thousand dollars put into an election for a just who doesn't have resources of his or her own, he or she has to go out and raise money from the people who practice in front of him.

  • 10:12:43

    REHMAlicia Bannon, talk about the money that is going into these elections. What are we talking about?

  • 10:12:53

    MS. ALICIA BANNONWell, so this is a trend that really took off in the year 2000. And what we've been seeing is, you know, money pouring in on both sides. So, you know, business interests, typically have been spending money in support of Republican and conservative judicial candidates. On the other side we've seen plaintiff side trial lawyers and unions putting money into these races. You know, and essentially both sides trying to shape who's sitting on these courts and the decisions that they're making.

  • 10:13:21

    MS. ALICIA BANNONIn the last judicial election cycle, in 2011 to 2012, as Norm noted there was about $56.4 million spent around the country. Most of the spending happens in the last two weeks before the election. So we're still -- we don't have great visibility yet on what it's going to look like this year, but we've documented spending already -- television spending already in nine different states around the country.

  • 10:13:48

    REHMAnd how does the spending so far compare with years past?

  • 10:13:55

    BANNONWell, I think the thing that has been most striking is the rise of independent spending by outside groups. So this was something that we first noticed this last election cycle, which was the first full election cycle post-Citizens United. And we saw a real surge of independent spending there. And that trend is continuing even more so in this cycle. One group that has been most -- the group that has been most active this year has been the Republican State Leadership Committee.

  • 10:14:25

    BANNONThey announced earlier this year what they're calling a Judicial Fairness Initiative. Which is an initiative targeting state court races, looking for opportunities to elect conservative judges. And they've put money into the Supreme Court races in North Carolina, Tennessee, Montana, and Illinois. And they've also spent substantially in a lower court race in Missouri.

  • 10:14:50

    REHMSo, Jan, what are the rules that govern these elections of state judges?

  • 10:14:59

    BARANWell, they do vary slightly from state to state, but there are some very general principles. For example, there are almost always limits on the size of a contribution to a judicial candidate. There are rules that the judicial candidate has to appoint a campaign committee, and often times not be personally involved in the fundraising and accepting of contributions. There are rules requiring disclosure of the money that's raised by the candidate. Usually the rules also extend to disclosure of money that's spent by other people, in connection with the elections.

  • 10:15:43

    REHMOutside groups, yeah.

  • 10:15:44

    BARANOutside groups, political party committees. They are not always disclosing where those groups get their money, but they have to disclose that they are spending the money.

  • 10:15:54

    REHMSo what do you think about this method of choosing judges?

  • 10:16:02

    BARANWell, my first reaction is that this is what the people want.

  • 10:16:08

    REHMSays who?

  • 10:16:08

    BARANYou know, the last time a state tried to revise its election system was in 2000, in Florida. It was somewhat overlooked because of all of the attention to another race in Florida in the year 2000 and the recount resulted in the Bush/Gore race. But there was a proposal on the ballot in Florida to change their system from elections to a so-called merit system, which involved appointments and so forth. It was rejected by almost 70 percent of the voters.

  • 10:16:42

    REHMWhat about the idea though of public financing for judges?

  • 10:16:47

    BARANI think public financing should be given some serious thought. I served on an American Bar Association Committee that recommended that in 2002 because one of the problems for judicial campaigns is that they need resources. There aren't going to be as many people who will want to contribute to a judicial candidate. Many more will want to contribute to a House candidate or a Senate candidate or gubernatorial candidate.

  • 10:17:17

    BARANSo these judges really have a problem with sufficient funding. And I think that public financing is an alternative that ought to be provided. However, there are two problems that we're encountering. One, again, is that the public, the people, don't like that. They don't like to have tax money used to fund campaigns, even judicial campaigns. And secondly, a lot of the proposals for public funding don't simply just provide resources to a judicial candidate.

  • 10:17:49

    BARANThey also are encumbered with additional restrictions. You can't raise money from anywhere else. You can't spend over a certain amount of money. They try to impose other restrictions. Some of which are unconstitutional in my view. So it's a complicated solution, but it is one that ought to be seriously considered because these candidates, in my view, need the resources. They have to campaign. The people insist that they be up for election. And you can't really run a campaign without the resources.

  • 10:18:19

    REHMJan Baran, he's head of an election law group at Wiley Rein LLP. He's former general counsel to the Republican National Committee, author of "The Election Law Primer for Corporations." We're going to take a short break here. When we come back we'll talk further, take your calls. Stay with us.

  • 10:20:00

    REHMWelcome back. We're talking about the elections of state judges, the kind of money that's going into these elections. Norm Ornstein, Jan Baran pointed out the problems with public financing. What do you think of public financing for these state judgeships?

  • 10:20:24

    ORNSTEINIf we're going to have judicial elections then I think you need to find a source of funding that is different from what otherwise exists. And what otherwise exists is the only possibility really the judges have to raise money is from people who practice in front of them. Now I should note, Jan mentioned restrictions that exist. The Supreme Court is going to be taking up a case very soon about whether -- which is a challenge -- about whether judges should be able to solicit funds directly themselves. And it's not at all out of the question that the court will allow this. And that turns judges into politicians in a different way.

  • 10:21:00

    ORNSTEINAnd once again, if you talk to anybody who's in public office who does call time, what happens? You either suggest to somebody you're going to get additional access, you maybe give them something in return or you tell them if you don't give the money -- you don't have to tell them, you can certainly imply it -- I'll remember that the next time you're in front of me. That is just an awful way to run a judicial process.

  • 10:21:25

    REHMAlicia Bannon, what do you think?

  • 10:21:30

    BANNONSo in terms of public financing, I strongly agree that it's a measure that states should be considering. You know, at its peak four states had judicial public financing programs, but in the last two years two of those states have eliminated those programs. You know, strikingly in North Carolina it was a very popular program both with the public as well as with judges. The vast majority of judges opted into the public financing system and opposed its elimination.

  • 10:22:00

    BANNONThis year is the first year in a decade in North Carolina that we haven't had a public financing system. And we've seen, not surprisingly, record levels of candidate fundraising in that state. And if you look at who gives money to judicial candidates, typically the majority of money comes from business interests, from lawyers, so many of the same -- excuse me -- many of the same people in organizations that are appearing before those very courts -- those very judges in court.

  • 10:22:28

    BANNONAnother aspect of the issue is that in many states the rules around when judges have to step aside from cases haven't been kept up to date to respond to this surge of money that we've been seeing in judicial races around the country. So, for example, in most states there aren't clear rules about when a judge needs to step aside from a case when a lawyer or a litigant has spent money to get them elected.

  • 10:22:55

    REHMThat's very interesting. And joining us now from Indianapolis is James Bopp. He played a key role in the Citizens United case. I wonder, James Bopp, explain why you think campaign contributions need to be part of the judicial selection process.

  • 10:23:24

    MR. JAMES BOPPWell, if you're going to have elections, obviously candidates need resources to get their message out. And it makes a big difference what kind of judge you elect. You know, you elect a strict constructionist, in some cases their philosophy will mean that they decide a case a certain way. Or you elect a liberal judge that believes in a living constitution, they tend to disregard what the laws say and use their own personal policy preferences. I mean, we know there's a difference between judging by Anthony Scalia and Justice Breyer.

  • 10:24:04

    MR. JAMES BOPPSo it makes a difference in, not all cases but many cases, how judges decide questions. And the voters, you know, need to be able to hold these judges accountable because frankly the liberal kind of judging is not very popular.

  • 10:24:22

    REHMSo tell me how you think the election process regarding state judges has been changed by the Citizens United decision.

  • 10:24:38

    BOPPI don't think substantially, as the person from the Brennan Center mentioned. There's been substantial spending in a number of races really beginning back in 1986 with the Rose Bird -- defeat of Rose Bird who was a very strong judicial activist who continually voted against the death penalty frankly in 56 consecutive cases. And the people figured out that she's just imposing her own policy preferences really beginning then.

  • 10:25:18

    BOPPNow what has made a change is the 2002 decision in the Republican Party of Minnesota versus White, a case I argued before the court where they said that judges can talk about their general judicial philosophy. That is they can quote "announce their views on disputed legal and political issues" end of quote. They cannot pledge how to vote in a future case. That would be -- can be disciplined and would be wrong, but they can talk about their philosophy. And so that has been a significant change and has allowed candidates now to not be a bystander in their own election but actually participate in the campaign by talking about their philosophy.

  • 10:26:08

    REHMSo you've got this case before the Supreme Court now as to whether the state judges can actually solicit funds. What's your thinking there?

  • 10:26:25

    BOPPThat's not my case but I will be filing an amicus brief in support of the idea that a candidate for a judicial office can, with some restrictions, solicit contributions. I mean, I understand that the most effective solicitor in any campaign is the candidate him or herself. And in this case the woman who is running for judge signed a letter that went out to many, many people asking for a contribution to her campaign. And she was disciplined for doing that.

  • 10:27:03

    BOPPI think there can be restrictions on this. For instance, I think it could be prohibited, for instance, to solicit at the courthouse if you're a judge or ask litigants or lawyers with cases pending in your court from contributing to your campaign. So I think there are reasonable restrictions on that but, you know, sending out a direct mail letter, you know, to hundreds or if not thousands of people asking for a contribution, surely that should be allowed.

  • 10:27:34

    REHMDo you think that in any way a judges impartiality could be compromised by the way campaigns are increasingly soliciting money?

  • 10:27:51

    BOPPWell, when you ask that question that really is not an objective question. It doesn't call for an objective answer. It calls for subjective answer because each judge, each individual judge needs to determine whether or not -- whatever circumstances there are, you're a relative, you're a campaign contributor, you're a neighbor, you went to the same school and fraternity, you know, whatever the factor may be, if there's any factor that would lend a judge to feel that he cannot be impartial between litigants that are before him, he should recuse.

  • 10:28:31

    BOPPAnd some judges, you know, recuse more than others because, you know, they seem to feel that any contact with a particular litigant compromises their partiality, where others, you know, maybe feel stronger about their own philosophy of judging, you know, don't feel that way. So I'm for a judge recusing whenever, no matter what the circumstances are, that they feel that they cannot be impartial.

  • 10:29:05

    BOPPHowever, I don't see imposing, you know, rules that would require any contributor because after all we have contribution limits. And that takes care of large contributions that would unduly influence any public official. And judges are really not more corrupt than your average state legislator after all.

  • 10:29:29

    REHMNorm, how do you see it?

  • 10:29:31

    ORNSTEINI see it in a very, very different way. We actually had an interesting case in the Supreme Court, the Caperton Case, where you had -- before any of the campaign finance changes took effect, where you had West Virginia Supreme Court decide against a mining company. The head of the company poured a lot of money into defeat that judge and replace him with somebody who reversed the ruling. Justice Kennedy, who is the key figure behind the Citizens United decision at a subsequent point, basically said, well, this is terrible. You're getting money going in that's influencing judicial decisions, and this can't happen.

  • 10:30:12

    ORNSTEINSo let me respond to Jim in a couple of ways. One is, contribution limits, which he doesn't like much to begin with, but are not terribly relevant in a situation where you have the Republican State Leadership Committee and other outside groups, some of which work through 501C4s and so, as Jan suggested, you don't have any idea directly who is putting in the money, can pour in very large sums, sums that judicial candidates can't raise.

  • 10:30:40

    ORNSTEINBut I think just as a general matter, you're not talking about somebody who may start out in a corrupt fashion. If you're a judge and you've got a case in front of you and one of the litigants could either make or lose huge sums of money and you're sitting there knowing that if you rule against them, there's a very real chance that a very large sum of money will come in through an independent operation, you're going to be thinking about that decision. And objectively we now have some evidence from studies that these elections actually shape some decisions.

  • 10:31:12

    REHMAnd Alicia, turning to you, what about this self regulation in regard to recusal? I gather sometimes questions are raised but not very often.

  • 10:31:29

    BANNONWell, so I think there's a couple aspects to this question. First off, in terms of, you know, why we need strong judicial recusal rules, you know, beyond the actual influence that money might be having on judges, there's also another value at stake here, which is public confidence in our courts. We've done polling that almost 90 percent of voters are concerned that money is influencing judicial decision making. And no more than 90 percent of voters think that judges shouldn't be hearing cases when litigants have spent money to get them elected, either directly contributing to campaigns or via independent expenditure.

  • 10:32:08

    BANNONSo I think there's a -- there's been -- there's a real disconnect between what we need in terms of public confidence in our justice system and the practices that we're seeing.

  • 10:32:16

    REHMBut how many times have judges been asked to step aside because money has come to them from litigants?

  • 10:32:31

    BANNONYou know, it's not uncommon for judges to be asked to step aside from cases. You know, sometimes they do. Very often they don't. In some states, in Wisconsin for example, the Supreme Court has promulgated a standard that campaign contributions on their own cannot be a basis for stepping aside from cases. So in some states there have been very strict rules saying that generally judges have to be hearing cases where money has been coming in from litigants. And, you know, even...

  • 10:32:59

    REHMAnd you're listening to "The Diane Rehm Show." So sorry to interrupt, Alicia. Go right ahead.

  • 10:33:10

    BANNONI was just going to say that in addition to issues around, you know, the judges' interest in money coming from their contributors, there's also sort of broader concerns that judicial recusal rules can address. So, for example, there was a recent study that the American constitution society put out finding that increased spending on television advertisements was impacting judges' decisions in criminal cases, or at least suggesting a correlation there. The reason is that if you look at the subject of these ads that are coming out in judicial races, they're frequently on criminal justice themes. They're frequently targeting judges for being soft on crime.

  • 10:33:52

    BANNONAnd now there's evidence that that is sort of in judges' heads as they're addressing criminal cases. You know, if you have a case before a judge, you want them to be deciding that case based on the law not thinking in the back of their mind about what the subject of the next attack ad is going to be.

  • 10:34:08

    REHMJames Bopp, let me bring you back to Alicia's point that public confidence in these state judges is waning rather considerably because of money involved in the process. How do you respond?

  • 10:34:28

    BOPPWell, it's actually been the opposite. There's a very interesting study recently about how people feel about the legitimacy of judges where they are subject to election and where there was an actual election. Because there was a campaign and information was going to voters because they have a choice. But they were getting information from the campaign or from independent spending about the judges, the choice that they're making. It actually showed that there was an increase in the belief, in the legitimacy of the selection of these judges when there was actually a campaign.

  • 10:35:11

    BOPPBut, you know, I think it's kind of silly to talk about, for instance, a concern about contributors. For instance, in Florida the contribution limit is $500. I mean, does anybody really believe that the average judge in Florida can be unduly influenced by a contribution up to $500 that ought to be thrown out?

  • 10:35:33

    REHMNorm Ornstein, what do you think of that?

  • 10:35:36

    ORNSTEINWell, what's happening in places like Florida is less the individual contributions that are coming in and much more the outside money. And in terms of the ads where Jim talks about information coming, Joe Nocera had a column in the New York Times the other day and pointed out what is now a typical ad that was aimed at Robin Hudson, who's state Supreme Court justice in North Carolina. And the ad said, we want judges to protect us, in one of these threatening voices. When child molesters sue to stop electronic monitoring, Judge Hudson sided with the predators.

  • 10:36:09

    ORNSTEINOf course, in fact, what had happened was the court was asked to rule on whether an electronic monitoring law could apply retroactively and she said it couldn't be applied retroactively. So that's the kind of information people are getting. And if you are then a judge and you have a case involving somebody who's been accused of child molestation -- it gets to Alicia's point -- and maybe you would say, well, what the law and the evidence suggest is that there's reasonable doubt here, but that's going to be an attack ad that will devastate me the next time, you're going to be thinking about that. Or you'll be thinking about what kind of sentence you're going to apply. And that, I think, is a real problematic element.

  • 10:36:50

    REHMDo you want to comment, Jan Baran?

  • 10:36:52

    BARANI think that judge who was attacked actually won her primary election, did she not?

  • 10:36:58

    ORNSTEINBy -- you know, what's happening is...

  • 10:37:02

    REHMBut isn't that beside the point? He's talking about the ad.

  • 10:37:04

    BARANMy point is that there -- obviously that scurrilous ad had no credibility and did not affect the election.

  • 10:37:11

    REHMAll right. We'll have to leave it at that. Jan Baran, he's a former general counsel to the Republican National Committee. James Bopp, I want to thank you so much for joining us.

  • 10:37:28

    BOPPMy pleasure. Thank you.

  • 10:37:28

    REHMShort break here. We'll be right back.

  • 10:39:59

    REHMAnd welcome back. Time to open the phones. And first, let's go to Nellie in Cuyahoga Falls, Ohio. You're on the air.

  • 10:40:12

    NELLIEThanks, Diane. In North Carolina, Eric Levinson is running as the Republican candidate for supreme justice -- court justice to the state. He was appointed by George Bush to go to Iraq and facilitate the illegal and barbaric execution of Sadam Hussein. He's running for office in a state which has no death penalty. North Carolina is one of 41 states which no longer conduct a state barbarism and I'd like Alicia's comment, please.

  • 10:40:48

    REHMAll right, Alicia.

  • 10:40:51

    BANNONWell, you know, I have to say I don't know very much about, you know, Mr. Levinson's background. I mean, I know there are four seats open on the North Carolina Supreme Court and so, you know, there's a number of active races and all of the candidates for those four seats, there are eight candidates in the general election have been, you know, fundraising extensively, you know, putting out television advertisements, trying to get, you know, their messages out.

  • 10:41:20

    BANNONAnd a number of them have talked about the burdens of fundraising that they're now facing without the option of a public financing program in the state.

  • 10:41:28

    REHMAll right. To Eli in Utica, New York, you're on the air.

  • 10:41:33

    ELIHi, Diane. I think the American people are overwhelmingly interested in severely limiting campaign spending over the total, entire array of politics, including judges. We all realize that these 20 second TV blurbs educate the people in no positive way in order to make a, you know, better representation in government. My feeling is that I think we need a constitutional amendment to severely limit campaign spending in all politics and I see no reason that the TV airwaves and radio, which are owned by the people, cannot be used to offer debates, to offer time for people to explain in an intelligent way what they stand for and let's brings some intelligence into this situation.

  • 10:42:34

    REHMAll right. Jan Baran.

  • 10:42:36

    BARANWell, I think the caller has touched on the appropriate way to change the system, which would be an amendment to the First Amendment. It would be unprecedented, but that is the correct approach. Failing that, then the issues that should be addressed is how do we improve the system and how do we, hopefully, instill more confidence in the process. And we'd have to look at alternatives, some of which have been discussed today, including disclosure, transparency in the process, limitations on the size of contributions and perhaps more refinement in the so-called recusal rules which is the judicial principle that a judge must step aside from hearing a case between participants, adverse parties, if he or she has an interest in the case or in the parties that might compromise his or her impartiality.

  • 10:43:38

    BARANAnd that could take many different forms, including, you know, a relative who's a party in a lawsuit or a former college roommate, or a neighbor or maybe a company in which the judge owns stock and things of that sort.

  • 10:43:52

    REHMJan, would you be in favor of public financing for campaigns for elected judges?

  • 10:44:00

    BARANYeah. I was in 2002 when I served on the American Bar Association and I am today. But when I say I'm in favor of public financing, I'm in favor of providing more resources to candidates, it can come from the government, but I don't agree with proposals that, in addition, impose additional restrictions, such as you can't get resources from anywhere else. You know, I think a judge...

  • 10:44:25

    REHMSo you think public financing, plus.

  • 10:44:28

    BARANThat's correct. You know, without spending limits, without a prohibition on raising additional funds, in limited amounts, from people who wish to make voluntary contributions.

  • 10:44:38

    REHMDoes that make sense to you, Norm?

  • 10:44:41

    ORNSTEINI actually think that if you look at the system that was operating in North Carolina, it worked pretty well. The bigger...

  • 10:44:48

    REHMWhat happened to it?

  • 10:44:49

    ORNSTEINWell, this really was a partisan decision that was made and was made for some of the reasons that Jim Bob suggested. We don't like some of these judges. We want to get rid of them. This is going to be the best way to do it because there'll be outside money coming in. I'm not sure that public financing alone is gonna solve a problem when we have outside money that has no restrictions on what happens.

  • 10:45:11

    ORNSTEINLet me address, for a second, Diane, the caller's point about the public airwaves. Back in 1998, '99, I co-chaired a presidential advisory commission on the public interest obligations of digital television broadcasters. And we called for broadcasters to provide more time for discourse during campaigns. The response was, well, you know, the first step is for Congress to do something about the campaign finance system and once they do, we will step forward and do it.

  • 10:45:42

    ORNSTEINThey did zero afterwards. Even a very modest call for five minutes a night across the whole evening for the 30 days before the campaign, a tiny share of stations did. If you look at them now, the stations are making bundles of money from all these ads coming in. Local television stations are the biggest beneficiaries of the post Citizens United world and what's happening now.

  • 10:46:05

    ORNSTEINI don't believe that we can do less discourse or have less money, unlike a number of others, but we're not gonna do much to change a system where now there's a flood of money coming in and broadcasters are part of the problem.

  • 10:46:19

    REHMHere's an email from Ruth who says, "the challenge for the electorate is how to make a wise decision when selecting judges. How can we find the information about a judge that would lead to informed decisions?" Right now, Alicia, the only information they're getting is from TV ads.

  • 10:46:48

    BANNONIt's a great point. One of the challenges in judicial elections is that they're incredibly low information races and so voters usually don't have a lot of information about the judicial candidates they're considering and if you look at the ads on TV, they're usually not informative and often misleading. Practices vary quite a bit in terms of what other information is available so some states have good voter guides available.

  • 10:47:16

    BANNONAlso, there are judicial performance evaluations available in some states. So you can look at evaluations sometimes from, you know, attorneys who have appeared before the judge and the judge's peers, sometimes even assessing the content of their decisions to give voters more information about the judges that they may be considering. You know, the practices vary state by state and I would encourage people who are in state that have elections this year to look into whether there are things like voter guides and judicial performance evaluations available so that they can better educate themselves about the candidates they're considering.

  • 10:47:52

    REHMAnd who is writing those voter guides?

  • 10:47:58

    BANNONYou know, I mean, again, it depends quite a bit. So, you know, in some cases, you'll have, you know, bar associations and the like provide information about judges. Sometimes, you'll have information from the judges themselves about their own backgrounds. And as I said, sometimes you'll also have these judicial performance evaluations which often time will reflect surveys from other judges, attorneys, sometimes court administrators about, you know, various aspects of a judge's record.

  • 10:48:28

    REHMAll right. Let's go to Lawrence in Charlotte, North Carolina. Hi there.

  • 10:48:34

    LAWRENCEThanks, Diane. Very important topic. Listen, we've received two letters several weeks apart. The envelopes said Supreme Court of North Carolina. I, Beverly Lake, Jr., chief justice, retired. In the first letter, it looked like it was on the supreme court stationary and, you know, talked against Sam Ervin, IV, who was Senator Sam's son, who's running for Supreme Court justice. In the second letter, also with the same, you know, envelope, stating Supreme Court of North Carolina.

  • 10:49:18

    LAWRENCEThe second letter is from Bob Hunter who is Sam's opponent and it starts out by saying I had seen Kay Hagan's ad saying the Koch brothers were supporting Thom Tillis, but I didn't know they were supporting me and then he says, later on down the line, that he hopes that he will benefit from millions of dollars of TV ads that we can expect will be paid for by individuals like Tom Fetzer, Charlie and David Koch and out-of-state political groups.

  • 10:49:54

    LAWRENCEAnd then, at the bottom, he says if I don't raise the money to match Jimmy's, that's Sam Ervin's war chest, he may be sitting on the Supreme Court bench standing up for his progressive ideas instead of a traditional-minded judge like me. Okay? Now, I don't know if it's legal to use envelopes that say Supreme Court of North Carolina as a vehicle for an ad for political fundraising.

  • 10:50:22

    REHMAll right. Let's see what our commentators have to say. Norm?

  • 10:50:28

    ORNSTEINYou know, this just what you see in an awful lot of political campaigns more generally. I get letters all the time that look like they're from the Social Security administration.

  • 10:50:37


  • 10:50:38

    ORNSTEINAnd seem to be official. And it's much more a statement about the reality that if we have judicial elections and they become like every other election, then the notion of an independent judiciary really ends up getting degraded and judicial candidates and judges are like politicians. And we know how politicians are viewed by voters out there. But it's different if it's politics where the whole game is horse trading and you expect some of these things.

  • 10:51:11

    REHMJudges are supposed to be separate.

  • 10:51:12

    ORNSTEINJudges are supposed to be separate and I think, you know, the whole fundament of a democracy really -- I've traveled around the world and you talk about the importance of an independent judiciary and the rule of law. If that gets questioned or polluted, it's a dangerous thing and I think this is very dangerous.

  • 10:51:29

    REHMDo you think we're on the verge of exactly that?

  • 10:51:33

    ORNSTEINOn the verge, maybe not, but I think we're heading in a slippery slope downward.

  • 10:51:37

    REHMAll right. To Dave in Pensacola, Florida. I gather you ran for judge.

  • 10:51:44

    DAVEYes, ma'am. I ran for judge and I threw my hat in the ring in the judicial nominating committee. We have a procedure in Florida if there's a vacancy on the bench, there is a local committee that screens the applicants and then forwards three names to the governor. There's not a nickel's worth of difference in the politics of either one. I'm afraid you people totally missed the point. If you're out there running, you run and you have to be truthful. You have to be honest and you have to be candid.

  • 10:52:18

    DAVEIf you go through the judicial nominating process, you're dealing with a smoke-filled room.

  • 10:52:23

    REHMAlicia, what's your reaction?

  • 10:52:28

    BANNONWell, you know, I think it's interesting when you look at the history behind the creation of judicial elections in the first place. They first emerged in the 19th century and they were, you know, as we've said, they were a reform measure. And I think one of the impulses behind them were concerns about judges being selected in smoke-filled rooms, that there was a lack of public accountability, that there was a lack of real independence from the political branches that were involved in selecting judges.

  • 10:52:55

    BANNONAnd so elections were intended to foster judicial independence and accountability. I think the concern right now is that with money playing such an important role, the accountability mechanism that judicial elections were intended to play maybe breaking down. And, you know, judges around the country are upset about this. You know, there are exceptions, of course, but a number of judges have been very vocal about the fact that they don't want to be fundraising all the time.

  • 10:53:25

    BANNONThey don't -- particularly from litigants and lawyers, they're not comfortable taking on that role, but they feel they have no choice. You know, they're sort of put in that position. And so, you know, I think this is something where, you know, it's troubling not just to voters and to people who might be appearing before courts, but it's troubling to many judges as well.

  • 10:53:43

    REHMIndeed. And you're listening to "The Diane Rehm Show." Alicia, I gather in North Carolina, candidates for the North Carolina Supreme Court have raised nearly $3 million in campaign funds just in this election cycle and that's according to the Brennan Center. So you've got lots of money going into these campaigns.

  • 10:54:17

    BANNONWe've got lots of money going into these campaigns and we also have a lot of independent spending. So in the primary, the Republican state leadership committee put $900,000 into a PAC in North Carolina that spend money on attack ads. This notorious attack ad against Justice Hudson talking about her record, allegedly supporting child molesters. And we just found they just made another contribution of about $400,000 to that same PAC which has started broadcasting ads again today.

  • 10:54:48

    BANNONSo, you know, we're seeing not just a surge in candidate fundraising, but also this surge in independent spending by outside groups.

  • 10:54:56

    REHMAnd finally, here's an email from Anne who talks about what's happening in Michigan where "three state supreme court judges have been running as a slate and run so many expensive commercials my husband and I could probably quote all three. The same theme reappears in all these commercials. These justices are protecting children and convicting child molesters. We've started to wonder if any other kinds of cases ever appear before them. I've seen polls indicating they'll probably win and I'd really like to know who they will owe." So that's what it comes down to, Norm, whether judges can, in the face of all this money, retain their obvious impartiality.

  • 10:55:59

    ORNSTEINAnd it may be a matter of feeling debts to those who support them or provide funds directly to them. It may be the intimidating factor is you're considering a case and, as Alicia said, we're seeing this with some criminal decisions that are made about what'll happen either in terms of attack ads or a well-heeled individual or group coming after you if you rule against them. This is a distorting thing.

  • 10:56:22

    REHMBut, Jan Baran, you're not concerned about it.

  • 10:56:25

    BARANWell, I'm concerned in the sense that I do want, you know, to monitor what's going on. I don't accept the proposition that voters are passive vessels, automatons who are just influenced by commercials on TV, especially in an age of websites, Google, Bing and Yahoo. I mean, there's so many more avenues for voters to find out information about candidates and to educate themselves before they go into court.

  • 10:56:52

    BARANAnd then, with respect to candidates, I think they are who they are. There are going to be liberal judges. There are going to be conservative judges and they're gonna have a judicial philosophy which will manifest themselves when they get on the bench.

  • 10:57:05

    REHMJan Baran, Norman Ornstein and Alicia Bannon. Thank you all so much.

  • 10:57:12

    ORNSTEINThanks, Diane.

  • 10:57:12

    BANNONThank you.

  • 10:57:14

    REHMAnd thanks for listening all. I'm Diane Rehm.

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